Opinion
W.C. No. 4-761-479.
December 30, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated July 23, 2009, that denied and dismissed the claimant's claim for workers' compensation benefits for an April 24, 2008 car accident. We affirm.
The employer is located on the Western Slope of Colorado. The claimant was hired as a heavy equipment operator. Prior to being hired, the claimant lived in Kersey, Colorado which is on the Front Range close to Greeley, Colorado. The claimant moved to Battlement Mesa on the Western Slope, but his family stayed in Kersey. On Thursday, April 24, 2008, the claimant worked until approximately 5:00 p.m. and after he clocked out, drove towards Greeley to attend a mandatory meeting with his probation officer scheduled for Friday, April 25, 2008 and to visit his family. As the claimant approached Greeley he was involved in a traffic accident during which he sustain injuries. The ALJ found that based on the credible and persuasive evidence presented at hearing the claimant did not suffer a compensable work injury during the motor vehicle accident of April 24, 2008.
On appeal the claimant argues that the claimant remained in travel status from the moment he left Kersey until the moment he returned to Kersey. The claimant notes his own testimony that the gasoline, the maintenance and a $50 per day payment for the use of his vehicle was an inducement to his employment and as such his travel was singled out for special treatment. Thus, the claimant argues that he was in "travel status" the entire time of his employment on the Western Slope and the accident was compensable. We are not persuaded to interfere with the ALJ's order.
Ordinarily, an employee injured while traveling to or from work is not entitled to workers' compensation benefits because, absent special circumstances, that employee is not within the course or scope of employment during such travel. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Mountain West Fabricators v. Madden, 958 P.2d 482 (Colo. App. 1997), affd, 977 P.2d 861. However, the travel status exception applies when the employer requires the claimant to travel. Tatum-Reese Development Corp. v. Industrial Commission, (30 Colo. App.) 149, 490 P.2d 94 (1971). The essence of the travel status exception is that when the employer requires the claimant to travel beyond a fixed location established for the performance of his duties, the risks of such travel become risks of the employment. Staff Adm'rs, Inc. v. Industrial Claim Appeals Office 958 P.2d 509 (Colo. App. 1997), citing Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963).
The claimant argues that the ALJ misapplied Madden v. Mountain W. Fabricators, 977 P.2d 861 (Colo. 1999) in concluding that the claim was not compensable. In Madden, the supreme court addressed the going to and coming from work rule, under which injuries are generally not compensable under the Workers' Compensation Act. See Sturgeon Elec. v. Industrial Claim Appeals Office, 129 P.3d 1057 (Colo. App. 2005). The Madden court held that "the determination of whether a traveling employee's injury warrants an exception to the going to and from work rule is such a fact-specific analysis that it cannot be limited to a predetermined list of acceptable facts and circumstances." Madden, 977 P.2d at 864. Accordingly, the Madden court ruled that the proper approach was to consider a number of factors to determine whether special circumstances warrant recovery under the Act. According to the Madden court, those factors include, but are not limited to: (1) whether the travel occurred during working hours; (2) whether the travel occurred on or off the premises; (3) whether the travel was contemplated by the employment contract; and (4) whether the obligations or conditions of employment created a "zone of special danger" in which the injury arose.
As we understand the claimant's arguments he does not contend the first, second or fourth factors were present. In any event, the ALJ made with record support the following findings. On April 24, 2008, the claimant's travel was after his normal work hours. Tr. at 27, 32 . The claimant's accident did not occur on the employer's premises or work site. Tr. at 28. The claimant has not argued that the conditions of employment created a "zone of special danger" in which the injury arose.
Addressing the third factor, which the claimant here places particular reliance upon, the Madden court explained that the issue of whether travel was contemplated by the employment contract "has the potential to encompass many situations." Madden, 977 P.2d at 864. The common link among compensable situations is that travel is a substantial part of the service provided to the employer as, for example, (a) when a particular journey is assigned or directed by the employer; (b) when the employee's travel is at the employer's express or implied request or when such travel confers a benefit on the employer beyond the sole fact of the employee's arrival at work; and (c) when travel is singled out for special treatment as an inducement to employment.
Here the ALJ made the following additional relevant findings of fact with record support. After obtaining the job with the employer, the claimant voluntarily moved to Battlement Mesa on the Western Slope. Tr. at 24. The claimant moved to Battlement Mesa to be closer to his new job. Tr. at 38. The claimant was not induced by the employer to move to the Western Slope with promises of special treatment. Tr. at 40, 43-44. The employer did not pay for the claimant's move to the Western Slope, and the employer did not pay for the claimant's lodging or meals during the period the claimant worked for the employer. Tr. at 24, 39. The claimant's residence during the period he worked for the employer was Battlement Mesa. Tr. at 26. The claimant was only paid for work while he was on the clock and was only on the clock during the time he was operating a machine. Tr. at 27, 32. The claimant was not paid for his travel from his home in Battlement Mesa to the Western Slope work sites. Tr. at 27.
The claimant lived in Battlement Mesa at the time of his accident. Tr. at 24, 47. The claimant was traveling to Kersey for a long weekend during which he was going to see his probation officer and his family. Tr. at 26. The claimant's travel to Kersey was not contemplated by his employment. Tr. at 43-44. The claimant's travel was not assigned or directed by the employer. Tr. at 41-42. The travel was entirely of the claimant's own volition. Tr. at 26. The employer did not encourage the trip, it did not request the claimant make the trip, and the employer had no control over the claimant's travel from the Western Slope to the Front Range, several hours after his job assignment. Tr. at 41. The Employer did not expressly or implicitly request the claimant to travel from the Western Slope to the Front Range. Tr. at 41. Such travel conferred no benefit to the employer. Tr. at 32, 40-41.
The claimant received a $50 per day truck rent from the employer's use of his truck. Tr. at 25. This was because the claimant's truck had an extra fuel tank and the claimant could transport fuel to the work site in his truck. Tr. at 25. However, the claimant was expected to use this commercial fuel account for work-related purposes and the claimant was not authorized to use the fuel account to fuel his truck for personal errands or vacation travel. Tr. at 26. The president of the employer testified that the gas, truck rental fee and the vehicle maintenance were not inducements for employment. Tr. at 43-44. The claimant was not promised that the employer would pay for his gas or mileage for his travel to Kersey. Tr. at 25, 39. The claimant was not authorized to use the employer's gas account to purchase gas to travel to Kersey on the day of the accident. Tr. at 40. The evidence established that the gas, truck rental fee and maintenance were not inducements for employment. Tr. at 44. The claimant was not performing any work duties during his drive to Kersey. Tr. at 31. The claimant's travel to Kersey did not confer a benefit on the employer. Tr. at 32, 40-41. The claimant was driving to Kersey for his own a benefit: to meet with his probation officer and to see his family. Tr. at 26.
The ALJ made the reasonable conclusion that the claimant's monthly drives to Kersey were not contemplated as part of the claimant's employment with the employer. In our view, these findings made with record support and reasonable inferences drawn from the record constitute substantial evidence supporting the ALJ's fact-specific analysis under Madden that the accident was not compensable.
We do not view this as a case where the claimant was sent to work on the Western Slope on a temporary assignment by an out-of-state or even a Front Range employer advancing the argument that the Western Slope became the claimant's home and the doctrine of travel status does not apply. We are aware that this type of argument has been rejected in Colorado. See Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995). In Hirst, the claimant was an out-of-state employee on a Colorado road crew, employed by a Texas corporation, which had contracted with Colorado to install road signs, guardrails, and fencing. The claimant was hired in Texas and transported by the employer to Colorado to work on the project. He and the other crew members were housed in a hotel or in other temporary quarters. On a Saturday a co-worker and the claimant obtained permission to drive a company truck to a nearby town in order to launder their clothes and to purchase clothing for the upcoming winter. They completed the personal errands and stopped at a bar prior to returning to their residences. After leaving the bar they were involved in a motor vehicle accident, which severely injured the claimant. The court held that the claimant's injuries were compensable on the ground that he was a traveling employee under continuous coverage. In concluding that the claimant was in travel status continuously while living in Colorado, the court expressly rejected the argument that because the job was scheduled to last for three or four months the claimant had relocated to Colorado instead of only temporarily traveling there. In this regard the court noted that there was no evidence that the claimant intended "permanently to relocate to Colorado."
Here, in contrast to the situation in Hirst where employee was sent from Texas to Colorado for extended period, the ALJ found that the employer is located on the Western Slope, only did jobs on the Western Slope and the claimant moved to the Western Slope so he could work for the employer. Tr. at 35, 38-39. There appears to be no dispute that the claimant's job was not temporary, but would last as long as the employer had work. In any event the ALJ found that the claimant planned to move his family to the Western Slope eventually. Tr. at 23, 39, 47.
Under these circumstances there appears to us record support for the ALJ's conclusion that the claimant was not in travel status when he was drove from Battlement Mesa to the Front Range to see his probation office and family, but rather the claimant's travel had no tie to his employment. Therefore, we decline to interfere with the ALJ's denial of the claim for workers' compensation benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
EDWARD BREIDENBACH, KERSEY, CO, (Claimant).
BLACK DIAMOND, INC., Attn: SCOTT BRADY, LOMA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
BELL POLLACK, PC, Attn: ROBERT A. BROVEGE, JR., ESQ., GREENWOOD VILLAGE, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: THOMAS M STERN, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: NEVA DEAL, DEVNER, CO, (Other Party).